The IRS recently issued a memorandum in which the IRS states that payments to consumers under SEEARP, funded by the Recovery Act appropriation, "are treated as reductions in the purchase price of the purchased product rather than income." The IRS further states that "States and other payors of [Recovery Act SEEARP] rebates are not required to report such payments on Forms 1099." The complete memorandum can be read at http://www.irs.gov/pub/lanoa/pmta_2009-165.pdf

The following suggested language can be used by States in a universal WAP application form: "All requests for information concerning applicants and recipients of WAP funds will be treated by the grantee, subgrantees, contractors and subcontractors in a manner consistent with the federal government's treatment of information requested under the Freedom of Information Act (FOIA), 5 U.S.C. 552, including the privacy protections contained in Exemption (b)(6) of the FOIA, 5 U.S.C. 552(b)(6). Under 5 U.S.C. 552(b)(6), information relating to an individual's eligibility application or the individual's participation in the program, such as name, address, or income information, are generally exempt from disclosure.

A request for personal information including but not limited to the names, addresses, or income information of WAP applicants or recipients would require the state or other service provider to balance a clearly defined public interest in obtaining this information against the individuals' legitimate expectation of privacy.

Given a legitimate, articulated public interest in the disclosure, [insert name of State or service provider] may release information regarding WAP applicants in the aggregate that does not identify specific individuals. However, the [insert name of State or service provider] will apply a FOIA Exemption (b)(6) balancing test to any request for information that cannot be satisfied by such less-intrusive methods. Please contact [XXXXXXXX] if you have any questions regarding how to process and respond to requests you receive for these types of information."

There is no weekly reporting requirement under SEP, the EECBG Program, or WAP. However, grantees can expect weekly calls from project officers in an effort to provide support. The purpose of the weekly calls is to assist grantees with early identification of potential problems, to help expedite costing, and to offer technical assistance. The purpose of the call is not for the collection of information that is being provided under the monthly and quarterly reporting.

4. Are there any regulations that would preclude a contractor or agency using WAP or EECBG funds from hiring a person with a criminal record? We're trying to track down this information and share it with contractors, advocates and local governments working with this population using WAP funds.

There are no regulations precluding a contractor or agency from hiring a person with a criminal record to work on Recovery Act-funded WAP, SEP, or EECBG projects. The individual with a criminal record would be entitled to be paid the appropriate Davis-Bacon Act wage rate, unless the individual is in an approved apprenticeship or training program that provides for a wage at less than the prevailing rate. A separate but related issue is whether a particular individual is deemed appropriate for a particular project. While such a decision would be left to the contractors or sub-grantee agencies, we assume contractors carefully screen and review suitability for employment.

5. Can both items (Recovery Act and Non-Recovery Act funded) be included under one contract provided that: (1) specific language is inserted in the contract which clearly separates the items from each other; (2) a list is provided that clearly states which items are ARRA-funded and non-ARRA funded? If not, how do you propose separating the contracts without losing the energy savings for the Subgrantee?

Items funded by the Recovery Act can be grouped with items funded by non-Recovery Act sources in one contract. However, please be advised that Recovery Act funds can be used in conjunction with other funding as necessary to complete projects, but tracking and reporting must be separate to meet the reporting requirements of the Recovery Act and related Guidance. For projects funded by sources other than the Recovery Act, Contractors should plan to keep separate records for Recovery Act funds and to ensure those records comply with the requirements of the Act.

6. Using funds awarded under the Energy Efficiency and Conservation Block Grant (EECBG) authority (42 U.S.C. 17151-58), some cities are installing energy efficient products (e.g. new, more efficient lighting to retrofit existing light fixtures). Where a private party notifies the cities that the products they are buying infringe private patents: (1) Does DOE take a legal position on this issue or provide legal guidance? and (2) Could DOE clarify the best course of action in contracting?

Does DOE take a legal position on this issue or provide legal guidance? No. Other than requiring that the products satisfy the Buy American requirements of the Recovery Act, the terms of the EECB grants do not require recipients to purchase and install any particular manufacturer's products. In addition, DOE does not assume any liability for patent infringement arising from those installations. For those reasons, DOE does not take a position on the merits of such claims of infringement. Whether a particular state's laws permit its municipalities to be held liable for infringement is a complicated issue that should be addressed to appropriate state or local legal staff.

Could DOE clarify the best course of action in contracting? Because any infringement liability issues will depend on state law, as well as the terms and conditions of the local purchase agreements for the products, DOE is not in a position to assess risk or advise on the best course of action.

A.1 Funds drawn down are reported quarterly to both OMB (via FederalReporting.gov) and DOE (via PAGE) in the following data fields:

OMB: Total Federal Amount ARRA Funds Received/Invoiced

DOE (Federal Financial Report/SF-425): Cash receipts

A.2 Funds drawn down are not equivalent to funds expended. EECBG Program Notice 09-02B details when funds are considered to be expended for both RLFs and LLRs and should be used as the guide for determining when to report expenditures to both OMB and DOE.

A.3 Job creation does not necessarily correspond with either the draw down or expenditure of funds. Section 5.9 of OMB Memorandum 10-08 notes that

"...a funded job is defined as one in which the wages or salaries are either paid for or will be reimbursed with Recovery Act funding."

As such, hours worked in one quarter may not be reimbursed (i.e. funds drawn down and/or expended) until a subsequent quarter. Recipients should report job creation in the reporting quarter during which the work occurred, not when reimbursed.

Thus, in any one quarter, there exists the potential for an apparent disconnect between the funds received or expended and jobs created. This "disconnect" is a direct result of the job creation methodology outlined in OMB Memorandum 10-08 but should not be a matter of concern for recipients insofar as recipients are following both OMB and DOE guidance on reporting of financial data and job creation. Neither FederalReporting.gov nor PAGE prevent recipients from submitting reports with (0) jobs created.

Section 5.7 of OMB Memorandum 10-08 outlines the extent to which job creation should be reported:

"Prime recipients are required to generate estimates of job impact by directly collecting specific data from sub-recipients and vendors on the total FTE resulting from a sub-award. To the maximum extent practicable, information should be collected from all sub-recipients and vendors in order to generate the most comprehensive and complete job impact numbers available."

As such recipients should, to the maximum extent practicable, report direct job creation resulting from implementation of their financing programs. Recipients should exercise their own discretion in what constitutes "practicable" and should only report jobs directly created or retained by the project.

A.4 Recipients are required to report energy savings and other applicable impact metrics (e.g. criteria pollutant reduction) on a quarterly basis to DOE. These metrics capture an estimate of how that portion of the project implemented in the reporting quarter contributes, on an annual basis, to any of the applicable impact metrics. As such, recipients with financing programs should report an estimate of the annual impact of that portion of the financing program implemented during the reporting quarter (e.g. value of loans issued). For example, if a recipient issues $400K worth of loans the second quarter of the year for building retrofits that are projected to save 415 MWh of electricity annually, 215.2 MT of CO2eq annually, and 1.94 tons of criteria pollutants annually, they should report these impact metrics in their second quarter report to DOE in PAGE.

For commercial building codes, section 410(a)(2)(B) of the American Recovery and Reinvestment Act (ARRA) specifically references the 2007 version of ANSI/ASHRAE/IESNA Standard 90.1. For residential building codes, section 410(a)(2)(A) references the most recently published IECC building code. This would be the most recent published IECC building code at the time the State provided the notification required under section 410.

9. Can a grantee request a waiver for a replacement refrigerator that does not meet the specifications provided in program guidance?

On October 6, 2000, the Weatherization Assistance Program (WAP) issued Weatherization Program Notice 00-5, Approval of Replacement Refrigerators and Electric Water Heaters as Allowable Weatherization Measures (WPN 00-5). WPN 00-5 provides specifications that must be met in order for a replacement refrigerator be allowable under WAP. The Program does not provide waivers from these specifications.

We note that following the waiver request there has been some question as to the eligibility of replacement refrigerators generally. The Office of the General Counsel has looked into this matter and has concluded that WPN 00-5 remains the applicable guidance on replacement refrigerators as an allowable weatherization measure.